robertsFirst things first. My favorite David Bowie song is “Heroes” (though I remember really being struck by its use in the 2001 movie, Moulin Rouge).

But the Bowie song that comes to mind today for various reasons is “Changes” and how it ties into another big story of the day — an oral argument before the U.S. Supreme Court in a case involving public employers.

At issue is whether public employees who do not want to be part of a union can still be required to pay an “agency fee”, which is typically the equivalent of the dues that union members pay as well.

The case is revisiting a 1977 case (the Abood case if you’re interested) which that requiring non-union members to pay fees for collective bargaining was constitutional.

The SCOTUSBlog sets up the argument on behalf of the non-union members like this:

Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object. Their target, in union parlance, is the “agency fee.”

The State of Connecticut has come out firmly on the side of upholding the current law.  In November 2015, it joined an amicus brief from New York urging the court to not change the current law and leave it to the state to determine the full scope.

It noted that 23 states permit these “agency fees” (also known as “fair share” fees) to “provide a mechanism for ensuring that represented employees contribute to  union costs germane to collective bargaining. The majority of these statutes make agency-fee requirements a permissible subject of bargaining and  authorize (but do not require) agency-fee provisions as part of public-sector collective-bargaining agreements.”
In the amicus brief, New York (and Connecticut) argue that the court should uphold the current scheme “recognizing that the government must have flexibility to manage its own internal operations, especially with respect to
matters affecting the delivery of government services.”

Why is this important, according to the states? A few things:

A lack of adequate funding can reduce a union’s ability to maintain the staff expertise necessary to perform collective-bargaining functions. Eliminating agency fees as a secure funding mechanism may require unions to focus disproportionate effort on recruiting members and collecting fees, thereby diverting attention from bargaining and contract-administration responsibilities. Moreover, the absence of secure funding may create skewed incentives for unions to make excessive bargaining demands or disparage management as antagonistic to labor, in order to encourage employees to give financial support.

Notably, a separate amicus brief filed by 18 other states argue the opposite.

It is time to abandon the meaningless distinction between collective bargaining and other political activity.  In the public sector, core collective bargaining topics such as wages, pensions, and benefits inherently implicate public policy, and in ways that matter.

Like lobbyists, public sector unions obtain binding agreements from the government that have enormous public impact — all without the natural counterweight of a financial market that exists in the private sector. In the public sector, it is taxpayers, not business owners and consumers, who foot the bill — and the bill is often steep.

Some pundits predict that the court will strike down agency fees.  Consistent with my post lack week, I won’t make any such predictions, but this case has significant implications obviously for public employers and it’ll be interesting to watch whether there will be any impact on private employers as well.

In any event, stay tuned and be sure to listen to some David Bowie in the meantime.

  • John Sembrot

    States should maintain the “flexibility to manage its own internal operations” … in the most expensive and inefficient way.